Court flunks high schoolers’ appeal on plagiarism database

Over student objections, the Fourth Circuit Court of Appeals has found that Web-based plagiarism detection service TurnItIn.com does not violate the students' copyrights in their work, even though it sometimes stores their complete papers for future plagiarism hunting. The federal decision (PDF) reads like a primer on "fair use," which was the legal doctrine that TurnItIn relied upon for its activities.

Several years ago, when I had the distinct privilege of teaching freshman composition, "plagiarism detection" took the form of using Google to look up sentences that seemed suspiciously out of place (and suspiciously well-written). This generated results more often than I could believe, but professors today can turn to Web-based tools like TurnItIn for even quicker searches of whole batches of student papers.

Here's how it works: teachers require students to upload their papers to the site, TurnItIn scans them for matches with a database of academic work and student essays, the service generates a report of all the potential problem areas for further investigation—and then the awkward conversations begin.

But teachers can also ask TurnItIn to archive the uploaded papers, adding them to the database so they can be used to suss out plagiarism in future essays. It was this practice—along with the fact that TurnItIn uploads were required in order to get a grade—that led students in Virginia and Arizona to sue TurnItIn for copyright infringement back in 2007.

TurnItIn has known for years that this would be a sensitive issue, and in 2002 commissioned an opinion (PDF) from law firm Foley & Lardner. The group concluded that the use of the papers constituted fair use, but admitted that "the archival of a submitted work is perhaps the most legally sensitive aspect of the TURNITIN system." The lawyers argue that because the text is not displayed or distributed to anyone, it can hardly be called "infringement." Fair use should allow TurnItIn to do what it does.

A federal court agreed that this was legal, for two reasons. First, TurnItIn required students to enter into a "binding agreement" when they uploaded papers to the site. Second, TurnItIn's use was "fair" according to the four factors found in US copyright law, with most weight being given to the "transformative" nature of what TurnItIn was doing with the papers.

The Appeals Court agreed with this analysis. "Plaintiffs also argue that [Parent company] iParadigms’ use of their works cannot be transformative because the archiving process does not add anything to the work—TurnItIn merely stores the work unaltered and in its entirety. This argument is clearly misguided," wrote the court.

"The use of a copyrighted work need not alter or augment the work to be transformative in nature... iParadigms' use of plaintiffs’ works had an entirely different function and purpose than the original works; the fact that there was no substantive alteration to the works does not preclude the use from being transformative in nature."

If you think this sounds a lot like the battle over search engine image thumbnails, you're not alone. The opinion noted the similarity to a case over Google Image Search, one in which judges had also concluded that Google's use of these copyrighted images was "transformative" even though they were not altered.

So, bad news, students: papers like the ones at issue in this case, ("DBQ1: Ancient Greek Contributions," "What Lies Beyond the Horizon," "Under a Pear Tree," and "Day is Weary") can in fact be archived by TurnItIn and used for plagiarism detection.

"Earlier in life, I never would have imagined myself as the world’s plagiarism authority," said iParadigms CEO John Barrie in a recent magazine article (PDF). "I didn’t have any particular axe to grind with cheating students. My goals as an early academic had nothing to do with plagiarism or plagiarists, but my experiences during that time brought myself and some colleagues to the point where we have revolutionized how education works."

66 Reader Comments

License your papers stating that the terms contained on turnitin's service were not agreed upon and that a fee will be charged of $15 each time your paper is referenced. Then state that if these terms are not agreed to, the paper cannot be used.

Granted, you could also use an actual license like creative commons, preventing turnitin from profiting from the papers as well. If enough people copy this license verbatim, the database will become useless, and will flag all of these licenses as plagiarism.

I start a business where i will tag all your music and all your movies for a fee, you just send them to me and i send them back to you. i get to keep the movies and music so future tags are easier to make, and i get to make money? that is fair use? sounds decent.

How is it fair use if it is a for profit endeavor in which the work is reproduced in its entirety? Doesn't fair use generally imply personal use when reproducing a work in its entirety (aka making a backup copy)? Once you move into public use you have to limit what is actually reproduced not to fall afoul of copyright. At least that's my non-professional interpretation.

edit - I see. There's no actual distribution since this is all done behind the scenes. I thought the works were being reproduced such that anyone could log into their web page and read a paper or two. Had to reread the article.

Well, I own books which said on the page under the copyright notice something like "cannot be stored in any information-retrieval system without written permission" - and one of the conditions for fair use of a copyrighted work is that only an insubstantial portion is used.

The law should be applied equally to all, except for reasonable exemptions, such as allowing the NSA to keep entire copies of copyrighted works on its computers to help in breaking book codes, the use of phone books as pseudo-one-time-pads and so on.

An exemption for the government for the purpose of national security is far more reasonable than letting any big corporation, whether it's TurnItIn or Google play fast and loose with copyright simply because it is a company and not an individual.

I don't see how "fair use" comes into play here. If the students upload their papers to the site and agree to the terms of service then they are sacrificing certain rights to their work. Even submitting a work to a professor may result in the sacrifice of some rights. For example, some classes may publish the works of all the students. As long as that sacrifice is known before the paper is submitted, it seems disingenuous to claim surprise after the fact.

I would think the real outrage would be for the presumption of guilt which running the papers through the site supposes. But that matter should be taken up with the school. If nobody uses the service then it won't need to archive any papers.

How about suing the schools that require this? Seems to me that requiring a student to enrich a private company through their work as the only way to get a grade ought to make the school somehow liable. I'm pretty sure that using coercion or blackmail to force someone into a contract against their will is a crime. Plus, since when can people under 18 sign a legally binding contract anyway? As the signed contracts were a factor in the court's ruling, I think it only fair that the schools be brought under scrutiny for forcing these contracts on students.

Despite what you might think "fair use" does not mean whatever strikes you as fair.

gerrynjr:

And how would you get turnitin to accept such a licensce? Merely writing it on your paper doesn't mean they accept it.

The problem with both your suggestion and the point raised by John Savard is that <I>no license applies when the work is being used under fair use.</I> Since storing your paper in their database is fair use turnitin doesn't need any license to use your work in this fashion.

Joshmx:

Well, if you ever start to use that database to watch the movies or for some other purpose other than merely comparing old movies to newly submitted movies then you have a whole different situation.

Also in the turnitin case the original copy was made by the copyright holder when they sent the copy in to turnitin. Only the saving of that copy in the database was at issue. Since you don't own the copyright to the movies you have on DVD the initial copy is on much shakier ground.

It probably depends on what the TOS said when these students submitted their papers and whether these students even submitted their papers in the first place. It may have been the professor who submitted those papers.

I agree that generally students implicitly waive certain rights under copyright law when they submit papers in class. For instance I would take it that they implicitly grant the professor a right to read it aloud to the class (performance) or to hand out copies to their classmates as an example of good writing. Certainly they grant their professor the right to make any copies needed to grade the material.

However, one might reasonably argue these don't include storing it in the turnitin database permanently so maybe that is how it matters that it's fair use.

I've graded papers at the high school and university level. The amount of blatant cut-n-paste jobs is ridiculous (one set of term papers had a 50% rate of non-citation -- This is after the kids were taught about plagiarism).

Anything that forces better research techniques is a good thing. I view it as no different that a proctor at an exam.

When I attended U of U Turnit.in.com was required in several courses. Believing that turn it in was a joke, I logged onto the U's proprietary DB constructed a paper of about 1500 lines, over 1200 which were cut and paste from the DB's articles, and submitted the paper to turnitin for grading for the course. It was not flagged as plagiarized. I did this with three other papers required for the course. Not one was flagged. After semester grading I took the papers and the hardcopies of the articles from the DB's with the plagiarized sections highlighted to the instructor, who told me I was obviously wrong about my submitting plagiarized material. I then went to the dean of the English dept. with the same material. Got the same result.

In short, turnitin is only good for material on the Web and material that has been previously submitted. There is over reliance on technology to do the instructors work.

Todays world is that of information. The teachers and instructors would be much better off teaching how to find and evaluate information than it is in attempting to stop plagiarism because all of our knowledge is based on the shoulders of others.

Originally posted by fletc3her:I don't see how "fair use" comes into play here. If the students upload their papers to the site and agree to the terms of service then they are sacrificing certain rights to their work.

That might be true IF the students weren't required to utilize the service to attain a passing grade. (i.e. don't submit your paper via turnitin.com, receive a zero on your final, fail the class)

Students are being squeezed here and the courts, as usual, aren't taking their side.

I would like to know how this is considered fair use, but when Google wanted to make a giant database of all the books ever published, all hell broke loose. Someone please explain to me what the difference is. As an educator, I support students right to not give away their IP for a grade. It is lazy teaching that leads to this crap. Teachers want to use the same damn assignments for every class. Well if you make original assignments, cheating is really difficult.

I start a business where i will tag all your music and all your movies for a fee, you just send them to me and i send them back to you. i get to keep the movies and music so future tags are easier to make, and i get to make money? that is fair use? sounds decent. ========================

Yes, as long as you never play any of the music, or watch any of the movies or let anyone else use any of the content. Next time someone uploads a song claiming it is an original work, but it has the same CRC/MD5 whatever as a song you have, you can identify it as a fake.

That is a fair use of the material, and you are free to go and start your business!

tocrailHow about suing the schools that require this? Seems to me that requiring a student to enrich a private company through their work as the only way to get a grade ought to make the school somehow liable. I'm pretty sure that using coercion or blackmail to force someone into a contract against their will is a crime. Plus, since when can people under 18 sign a legally binding contract anyway? As the signed contracts were a factor in the court's ruling, I think it only fair that the schools be brought under scrutiny for forcing these contracts on students.

In loco parentis. All schools in the US operate under this principle.

Now, you may have something with the requirement being duress though. A contract signed under duress is invalid and unenforceable.

Originally posted by fletc3her:I don't see how "fair use" comes into play here. If the students upload their papers to the site and agree to the terms of service then they are sacrificing certain rights to their work.

That might be true IF the students weren't required to utilize the service to attain a passing grade. (i.e. don't submit your paper via turnitin.com, receive a zero on your final, fail the class)

Students are being squeezed here and the courts, as usual, aren't taking their side.

Schools use many services that they then require their students to comply with. Students do not get to select their textbooks, for instance. And professors routintely search for plagurism in papers, all turnitin does is give them a more powerful tool for doing so.

As pointed out, the students do not necessarily own the papers in the first place(many university level classes claim copywrite on students work), Turnitin's usage falls within fair use(they are not reproducing or distributing the papers), so what is the problem?

The only problem I see is that plagurism just got a bit more difficult. Although as pointed out by others, this is only going to catch certain types of plagurism. It definatly has its limits.

Originally posted by TechGeek:I would like to know how this is considered fair use, but when Google wanted to make a giant database of all the books ever published, all hell broke loose. Someone please explain to me what the difference is. As an educator, I support students right to not give away their IP for a grade. It is lazy teaching that leads to this crap. Teachers want to use the same damn assignments for every class. Well if you make original assignments, cheating is really difficult.

As an educator you should know how ridiculous this seems. Do you really think that a teacher should only once require a report on Darwin? That they should only once in thier careers cover the Dark Ages? Seriously? There are only so many subjects and only so many different types of assignments to each, especially when you are in a single topic course.

As for why its fair use and Google's was not, keep in mind that Google wished to make the books searchable and readable to the public. They were not doing it simply for private purposes. Furthermore, Turnitin is recieving permission from every student who submits thier paper, Google was not doing so with thier approach to books. The two cases are not remotely comparable.

I think this could go to the Supreme Court.For one, any agreement between the student and TurnItIn was arguable signed under duress, as coursework will not be marked (and hence they would fail their class, and lose the $$ they spent taking it) unless they agree to terms they find objectionable.

quote: The lawyers argue that because the text is not displayed or distributed to anyone, it can hardly be called "infringement."

Does it just spit out "This is plagiarism" and teachers aren't even required (resp. able) to actually compare the texts themselves?

I presume it would show them the text. Keep in mind that excerpting is itself protected by fair use.

See, that is problem for me. Does that mean that two students who choose to quote the same source with the exact same quote would end up being flagged? A smattering of words extracted from the context of the parent doc is a flimsy case for plagiarism. In this case you'd need to see the two papers to see if this is just a coincidence or truly plagiarism.

> The amount of "outrage" in defence of people doing something that is clearly wrong (plagarism) is amusing.

This is an article about students objecting to their unpublishedworks being taken and used for profit by some company they neverhad any voluntary relationship. This applies to ALL students, andnot just the "guilty" ones.

This case has nothing to do with who's been naughty or nice.

Lars might whine about his work being pirated but at least hechose to publish it. These students did nothing of the sort.

Originally posted by Nagumo:See, that is problem for me. Does that mean that two students who choose to quote the same source with the exact same quote would end up being flagged?

If the quote was properly attributed, that would be perfectly okay. The problem is copy&paste without attribution and without indicating that a passage is a quote - and also a complete lack of awareness how different pieces of text from different sources and writers sound, thus often making it easy to spot plagiarism, even without software support.

Originally posted by Grashnak:The amount of "outrage" in defence of people doing something that is clearly wrong (plagarism) is amusing.

This is outrage in defense of the people who aren't plagiarizing. That said, I think TurnItIn is right, that this is fair use, but I think that once they have a final ruling saying so, they should abandon the terms of use giving them further rights, as they do seem to be contracts of adhesion. I can see issues if some student wants to publish a class paper in a magazine or journal of some sort, but can't if the copyright agreement is supposed to be exclusive and TII's terms are too broad. Basically, students should have rights in their work, and services to detect plagiarism should stand solely on the grounds of fair use, and be confined to what it would allow.

quote: Originally posted by Nagumo: See, that is problem for me. Does that mean that two students who choose to quote the same source with the exact same quote would end up being flagged?

If the quote was properly attributed, that would be perfectly okay. The problem is copy&paste without attribution and without indicating that a passage is a quote - and also a complete lack of awareness how different pieces of text from different sources and writers sound, thus often making it easy to spot plagiarism, even without software support.

That also requires the ability to see both papers in whole. TII makes the process sound quite automated. So I ask again. What is to stop two students that used identical quotes from the same source and properly cited the text in their papers from being flagged as copying one another.

As most plagiarism tends to be copy/paste from an on-line source, Google still seems one of the best ways to find the cheaters.

Originally posted by naphini:@gerrynjr. IANAL, but I feel like CC (or any other license) is trumped by fair use. Anyone know for sure?

Yes. Fair use "trumps" copyright. CC is a license under copyright.

@joshmx, I would caution you: If there is a voice inside you that says "Its the same thing", you can almost be sure it is not. At least to the courts and Congress. It has been done too many times. Never know when common sense will exclude THE nine people who matter the most.

and.... anything that strengthens fair use is a win for "the rest of us". Not that any ruling with the well heeled corporation on the other side of the bar would go the same way.

Sadly I'm sure the court is just looking down its nose at these kids who *** obviously don't know their place. ***

Who knew the law didn't apply to students?

The case for fair use here is weak. It doesn't seem to fall under the educational exemption, as the papers are not used in the preparation or presentation of lesson materials. The Courts argument that practically any use that is not what the original author intended constitutes transformation... well lets just say its pretty far out. I'd love for that argument to stand as precedent. But it makes little sense under the current copyright regime.

The validity of the contract, signed (as mentioned) under duress, is a lot harder to swallow. I would go so far as to call the terms "unconscionable" in the legal sense.

The problem, in my opinion, are the actual reports sent back to the professor in question. Do they, in fact, contain the whole of the offending article or just collation of points ? If they contain the whole article, then this court decision is horrendously unfair.

While I'm willing to accept that most likely Turnitin won't use the articles for other use than the agreed-upon plagiarism searches, I have no such trust for professors who prove their own insecurity and untrustworthiness by doubting their students' integrity.

Teaching needs two-way trust and IMO this invalidates it horribly -- especially if the professors then just send their students' articles in without informing or paying their students anything (twice so if they make money from it)

That the students are required read coerced/compelled to submit their work to a for profit or even non-profit corporation is a grave concern. Schools working to support corporations by forcing students to submit their work for monetization to a corporation is a grave concern. Turnitin would be useless without source material for comparison. In that Turnitin is clearly monetizing the papers submitted, the students in my opinion are owed compensation. Whether the papers are reproduced in whole or part is irrelevant. What is clear is that possession of the papers allows Turnitin to get paid. The relationships of Turnitin and the schools and teachers that force the students to submit work should be investigated for referral fees and the like.

On another level, one really has to wonder what happens when schools can force you to submit your intellectual property to a non-school authority in order to participate in a class. If the data base where hacked and the papers released to the world at large are teachers and schools doing the compelling willing to be held liable. Honestly, call me a sap, but I had teachers that I had great relationships with that as a result were privy to things that really mattered to me through my writing. It was because of the relationship and the trust that I had in them that I shared as I did. Guess what? There were other teachers that just got the assignment.

I bring this up only because I feel that for some students there is a trust dynamic at work. Maybe you share things that you don't expect to see or hear ever again unless you decide to upon receiving the graded work. As I recall, if teachers wanted to keep your graded papers or submit them elsewhere, they'd ask and explain the duration of time before you'd get it back. First, thing I wonder is does this change the trust dynamic for students who tend to be more technologically astute and capable of appreciating that the things they write can in fact come back to haunt them if submitted to some "Terminator Skynet" for homework that CAN be compromised. Finally what changed that teacher no longer ask if they can keep your paper a little longer, but instead make you send it to a freaking corporation.

One more thing. If these are high school students that we discussing, can they really consent to a contract or is parental consent what should be sought. Doesn't the law take a dim view of contracts arrived at through coercion?

quote: Originally posted by Nagumo: See, that is problem for me. Does that mean that two students who choose to quote the same source with the exact same quote would end up being flagged?

If the quote was properly attributed, that would be perfectly okay. The problem is copy&paste without attribution and without indicating that a passage is a quote - and also a complete lack of awareness how different pieces of text from different sources and writers sound, thus often making it easy to spot plagiarism, even without software support.

That also requires the ability to see both papers in whole. TII makes the process sound quite automated. So I ask again. What is to stop two students that used identical quotes from the same source and properly cited the text in their papers from being flagged as copying one another.

As most plagiarism tends to be copy/paste from an on-line source, Google still seems one of the best ways to find the cheaters.

Nothing stops that from happening. If two papers happen to use the same source then the "audit report" from TurnItIn would flag the papers. From there the Instructor would review them to see if it was really a problem or not. It is only evaluating them for Plagiarism not grading them. The article even seems to indicate the process is something simialr to that.

I don't see how this would be any different than any other automated evaluation system. Anyone who works in a decent sized IT department gets the joy of going through reports like that on weekly if not daily basis for everything from System Logs to Virus Scan reports.

The students get screwed because they don't have the money for the lawyers like the **AA has and they don't have the money to bribe the courts like the **AA does. It's always the same - if you have money for lawyers and bribes you get away with whatever you want, if not you're so out of luck.

I am myself a college student at a top US school (University of Virginia). I don't see a problem with someone using my papers for this purpose. Here's why:

1) Catching plagiarizers is to my benefit. Generally speaking, people breaking the rules to get ahead do so to the detriment of rule-abiding people. If someone cheats and gets away with it, it upwardly adjusts the grading curve on the assignment (if there's a curve) and it makes my grade less meaningful. This is the weakest of the arguments.

2) Most of my papers don't have a lot of underlying value. With very rare exceptions, my papers (and most of the papers of people I know) are generally not going to be in a position to profit me. Even for scientific/engineering classes, most of the class work deals with retreading known discoveries/principles, and is thus not really publishable. That's not to say that there aren't exceptions (original research in a lab, a paper so good a journal would publish it), but those are 1 paper in a million.

3) Turnitin.com's system in no way limits whatever potential value my paper might provide me. Let's ignore (2) for a moment and pretend that I have, in fact, turned in an assignment (paper/research/whatever) so awesome that I can monetize it. In that case, I am in no way in danger of competition or losing value due to Turnitin having a copy. So long as it's only used by them to stop plagiarism, I can still publish, sell, patent, syndicate, whatever, at exactly the same value whether or not Turnitin has my paper.

4) They have to work for this. They are putting in substantial work in terms of programming, design, hosting, etc. to put together their service. If they were making money without doing their own work, I'd be upset, but they're clearly putting in most of the effort to their system.